Byers v. Wallace

• Decision Date: 11 February 1895
• Parties: BYERS et al. v. WALLACE et al.
• Court: Texas Supreme Court

29 S.W. 760

BYERS et al. v. WALLACE et al.

Supreme Court of Texas.

February 11, 1895.

Petition for rehearing. Denied.

For former opinion, see 28 S. W. 1056.

BROWN, J.

Counsel for the defendants in error earnestly insist that the decision of this court is erroneous upon several points, and especially as to the admissibility of the declaration of William Wallace, under whom the defendants in error claim title to the land. The statement of the evidence admitted, upon which the question is raised, is as follows: "The eighth bill of exceptions shows that `Son William' was allowed, in another set of depositions, to say that his father had frequently told him that he had a nephew who went to Texas, and was killed in 1836 at what was known as the `Fannin Massacre.'" It does not appear at what time the declarations were made, and counsel claim that it does not appear that they were self-serving because made before the granting of the certificate under which the land is claimed. From the declarations it appears that William Wallace claimed to be the nephew of the declarant, was then dead, and, if the declarations under other evidence in the record be true, the declarant would be sole heir of the deceased, and entitled to his estate, whatever it might be. Besides, the deceased soldier's heirs were entitled to land under a law in force at his death.

It is insisted that this court has decided contrary to the weight of authority upon this question, and in conflict with the cases of Boone v. Miller, 73 Tex. 557, 11 S. W. 551, Louder v. Schluter, 78 Tex. 103, 14 S. W. 205, 207, and Fowler v. Simpson, 79 Tex. 614, 15 S. W. 682. The question is not remotely hinted at in the first two cases. In the last it is perhaps true that this question was before the court, but it is so indefinitely stated that it is not certain that the court decided upon the very point at issue. The opinion was delivered by Judge Henry, in which he said: "The defendant, Simpson, as appellant, assigns as error a ruling of the court in permitting John F. Fowler, one of the plaintiffs, to testify to the declarations of his father, James Burton Fowler, that he was the surviving brother and only heir of Sam and John Fowler, made before he conveyed the land to plaintiffs." "It is contended that the declarations of James Burton Fowler, made at the time that he claimed to own the land, were not competent evidence. James Burton Fowler was dead when the testimony was given." "With regard to the admission of hearsay evidence in case of pedigree, Mr. Greenleaf says that the law resorts to it `upon the ground of the interest of the declarants in the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in succession in question.' The evidence was properly admitted." This is all that there is in the opinion touching the question. What is decided by this case? The assignment of error was broad enough to embrace the objection that the declaration was made by the party in his own interest, but the proposition deduced from it by the judge, in this language, "It is contended that the declarations of James Burton Fowler, made at the time that he claimed to own the land, were not competent evidence. James Burton Fowler was dead when the evidence was given,"—seems to narrow it to two questions that might be presented; that is, that the testimony was hearsay, and that the declarations were made by him while in possession of the land, and, not being in disparagement of his title, were not admissible. Looking to the quotation from Greenleaf, which is the decision of the question, we can arrive at what the court understood the question to be by ascertaining what was decided. The text of Mr. Greenleaf, as quoted, rests upon the proposition that such declarations are admitted upon the ground of interest in the person from whom the descent is made out, and that, being so interested, they would likewise be interested in knowing family connection or pedigree. He then states the rule to be that only declarations of those related to the person by blood or marriage, and therefore — that is, because of their relationship — interested in the succession or order of succeeding to the rights of the ancestor, are admissible. Nothing is decided in this case which bears the remotest analogy to the question presented here. The quotation from Greenleaf was apt upon the question of whether the...